Permission to produce secondary evidence at trial does not negate its admissibility at that stage, as the interpretation of circumstances for its use must occur during trial.

O R D E R

These revision petitions under Section 397 r/w 401 of the Code of Criminal Procedure, 1973 (Code) are filed challenging similar orders of the temporary Special Court of the Judicial Magistrate of First Class, for the trial of cases under Section 138 of Negotiable Instruments Act, 1881 (NI Act) Thiruvananthapuram. The order reads:

“Petition is filed to admit true copy of cheque. Complainant counsel submitted that original cheque is lost. The photocopy can be admitted as secondary evidence. InChitaranjan v. Jayarajan [2005 KHC 132], Hon'ble High Court held that, if the cheques are lost it would be improper to deny the complainant an opportunity to substantiate his grievance by adducing secondary evidence as permitted under Section 65 of Evidence Act. In the light of the above decision petition is allowed. Petitioner is permitted to produce secondary evidence of cheque under Section 65 (C) of the Indian Evidence Act . Hence the petition is allowed.”

2. The accused in the respective cases filed this revision petitions aggrieved by the said order.

3. Heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel for the 2nd respondent.

4. The 2nd respondent has filed respective complaints alleging commission of offence punishable under Section 138 of the NI Act by the petitioner. The 2nd respondent filed respective petitions seeking permission to produce photocopy of the original cheque as secondary evidence. It was contended that the cheques were misplaced and despite earnest efforts, the same could not be traced. On that ground, permission was sought to adduce secondary evidence. Photocopies of the respective cheques were produced as secondary evidence.

5. The petitioner opposed that petition contending that since the very basis of the prosecution is the cheque, no permission could be granted to produce a photocopy as secondary evidence. It is further contented that without any bonafides, such petitions were filed.

6. What the learned Magistrate permitted as per the impugned orders is to produce secondary evidence. Secondary evidence can be produced before a court only in terms of Section 65 of the Evidence Act. Whether the circumstance mooted by the 2nd respondent to invoke the provisions of Section 65 of the Evidence Act really exists is a matter to be decided by the court at the time of trial and recording of evidence. Permission to produce a document cannot be refused at the threshold. The Court can receive or refuse to receive secondary evidence only when the circumstance enabling the person to adduce secondary evidence is proved. In that view of the matter, permission given as per the impugned order cannot be said to be incorrect. The order is not to receive the secondary evidence, instead, it is only a permission to the 2nd respondent to adduce secondary evidence. Whether or not that evidence should be admitted in evidence, is a question to be decided after appreciation of the relevant evidence.

7. That apart, the impugned order cannot be treated as an intermittent or final order, but only an interlocutory order coming within the purview of Section

397(2) of the Code. As held inMadhu Limaye v. State of Maharashtra [1977 (4) SCC 551], the criteria to decide whether an order is interlocutory or not is that whether the order rejecting the plea of the accused on a point, when accepted, will conclude the particular proceedings. Viewed so, the impugned order can only be an interlocutory order and therefore this revision petition is not maintainable in law also.

In the circumstances, these revision petitions are dismissed, however, with the aforesaid observations.